Every picture tells a story. So does each increase or decrease in the number of U.S. patents major businesses receive over the prior year.

The recently published IPO Top 300 patent recipients for 2016 encourages scrutiny. While overall grants were up 1.6% over 2015, there were several unexpected swings, and a number of notable gainers and losers.

Only four of the top ten U.S. patent recipients in 2016 were foreign-based companies, down from 2011, when eight out of the top ten recipients were non-U.S. It is difficult to tell if that change reflects more filing on the part of U.S. companies or less interest on the part of foreign filers. Probably, the latter.

Those receiving fewer patents in 2016 over 2015 include Toshiba, -33.3%, GM Global Technology, -14.8%, Johnson & Johnson, -14.1%. Broadcom, -24.3%, Blackberry, -28.1%, and DuPont, -35.5%. ABB Ltd., down 142%, was still granted 317 patents. NXP Semiconductor, which was acquired by Qualcomm in the fourth quarter, was down 70.3% in U.S. patents received.

Multiple Factors

Depending on the company and industry the grant losses can be attributed to several factors, including reduced R&D budgets; a lower regard for the value of patents due to changes in the law and decisions in the courts; reduced concern over patent counts; and the desire on the part of more companies to obtain fewer, better quality patents.

“It is difficult to attribute reasons or trends as to why a company may have had more or less patents issued from one year to the next,” Brian Hinman, Chief IP Officer for Philips told IP CloseUp. “Patents issuing in 2015 may still be reflecting the impact of the patent application filing surge just prior to enactment of the AIA hence the decline in 2016.

“We also may be seeing the impact of more companies deciding to maintain their innovation as trade secrets especially in light of enactment of the DTSA [Defend Trade Secrets Act].”

It should be noted that some companies choose to spread their patent grants among multiple entities, obscuring the actual number received. Companies which had been actively filing software and business method patents in previous years, are likely to be doing less of that, now that those types of patents are more difficult to obtain and uphold.

Notable Increases

On the upside, among the top 21 recipients, Intel was up 30.1%, Taiwan Semiconductor & Manufacturing, 28.6% and Ford Global Technologies, 27.6%. Amazon, 15th on the overall patent recipient list for 2016 with 1,662 grants, was up 46.3 % over 2015. This may reflect a new seriousness about entering or acquiring other businesses.

Other notable gainers include Nokia, up 73.8%, GlobalFoundries, up 136.5% and Hyundai Motor Co., up 39.1%. (GlobalFoundries acquired IBM Microelectronics in 2015.)

Among financial institutions, Bank of America was up 20.8%, having received 279 patents. Perennial annual U.S. patent leader IBM, was up 7.8%, receiving 8,023 patents, the most of any company.

The Center for Intellectual Property Understanding (CIPU), an independent, unaffiliated non-profit dedicated to increasing IP awareness and improving negative attitudes towards patents, copyrights and other rights, was launched in New York last week.

As reported in IAM, Law 360, World IP Review and other publications, the non-profit Center for IP Understanding was founded to address the uncertainty among audiences regarding patents, trademarks, copyrights and trade secrets — especially who do they benefit and their impact on new ideas and jobs.

“[The Centre’s] creation is in many ways a response to the battering that IP’s public image has taken over the last several years,” reported IAM blog, “particularly in the US. In that time a series of Supreme Court decisions are widely seen to have undermined patent rights; the idea of efficient infringement has taken root; and the ‘patent troll’ narrative has gained wider traction in many parts the media.”

Also helpful in getting CIPU underway were Judge Paul Michel (Court of Appeals for the Federal Circuit, retire), David Kappos (Commissioner of the USPTO, retired) and film producer and author Irv Rappaport, former chief patent counsel at Apple and Medtronic, who has generated more than 20 patents, and Jonathan Taplin, a film producer, author and Director Emeritus of the Annenberg Innovation Lab a the University of Southern California’s Annenberg School for Communication and Journalism.

Among the CIPU’s goals for 2017 are a survey of IP awareness and attitudes among the general public and business owners; a research report on trends in media coverage of patent disputes; and a possible joint conference with Duke University on Innovation Policy.

The Center for IP Understanding also plans to provide outreach to educators, parents and business that help to facilitate better IP behavior.

Cultural Shift

“We have entered the ‘free-information’ era, where online content and patented inventions are readily pocketed by those who would never dream of shoplifting,” said Bruce Berman, CIPU Chairman, and CEO of Brody Berman Associates. “Products like music, books, novel designs, inventions and counterfeit goods appear to be there for the taking – or feel as if they should be. Uncertainty about what IP rights cover and their appropriate use compound the problem. CIPU will address these and other issues.”

“IP confusion is costly for consumers and businesses alike,” said Vice-Chairman Marshall Phelps, who is a member of the IP Hall of Fame. “Free-riders – unauthorized users of IP-protected products and works – come in many shapes and sizes. They impact performance and investment, as well as job creation. IP awareness and acceptable behaviors are too important to be left to audiences to decide on their own.”

Despite dramatically lower patent valuations, some big companies, including under-performing foreign holders, have taken the number of U.S. sales to new highs.

While IBM still leads, over the past three and a half years, it has been joined by IP-conservative firms from Japan, notably Panasonic/Matsushita, NEC and Sony. All four of these companies have something in common: poor recent financial performance.

In the January IAM Magazine, the Intangible Investor looks at the latest trends in patent sales among the biggest sellers. Activity is up and emerging are new leaders, like Panasonic, which leads even IBM in U.S. sales for the first half of 2015.

Analysis conducted by Brody Berman Associates in conjunction with Envision IP, a law firm that specializes in patent research, reveals that “for the three-and-a-half year period from 2012 to early August 2015, the leading seller by far was IBM, with 5,356 patents. Buyers include Google, Facebook, Alibaba and Twitter. In 2014 alone, IBM sold 2,187 patents, the most in any year over the period by any of the 12 leading tech companies analyzed.

“Surprisingly, the number two, three and four patent sellers in the 2012-2015 period were all Japanese companies,” writes this reporter. “Panasonic/Matsushita, NEC and Sony, with 4,203, 2,131 and 1,578 respectively. This is a dramatic shift for conservative Japanese electronics giants, which rarely litigate patents to generate revenue or enable others to.”

Intellectual Venture’s 70,000 patent portfolio appears to contain no patents originally owned by Apple, Google or Qualcomm, as Envision’s findings indicate. Several patents owned by IV investors appear in its portfolio, including those of Nokia, Verizon, Microsoft and Sony. Only 268 of the 19,559 US patents owned by IV were identified as having a litigation history, representing less than 1.5% of the portfolio.

Among the top companies IV purchased from are Kodak (1,057), American Express (643), AT&T (358) and Philips (313) and Ericsson (273).

Three things are needed to succeed today in patent licensing: more capital, more patience and more good patents, which are in increasingly short supply.

Uncertainty is the glue that binds weaker patents to cheaper ones.

Patent reliability is poorer than ever, in part because invalidating bad patents is now somewhat less arduous and costly. The courts are awarding fewer and lower damages awards, and defendants with time on their side and cash in their pockets, can play an even longer waiting game.

Increased uncertainty has encouraged more patent holders, mostly those operating companies that generate their inventions and rights internally, to consider purchases that they may not have previously. At “buyers’ market” prices, who can blame them? It will be interesting to see how uncertainty in the patent system will affect future R&D strategy and domestic patent filings.

With asking prices per asset trending down, and brokered patent sales lower, the percentage of packages sold is actually up significantly, as is opco buying.

The top buyers in 2015 Q1 according to Richardson Oliver Law Group, which tracks brokered patent transactions, were RPX, a Canadian numbered company, and Intellectual Ventures, for their Intellectual Investment Fund 3. These buyers accounted for 42% of all of the packages purchased in 2015 Q1 and RPX alone accounted for 28%. Other, much smaller buyers in Q1 include Apple and Philips.

Listings are Down; Sold Packages Up

ROL indicates that patent deal listings (patent and application packages) are down 20% from 4Q 2014 to 1Q 2015, but that packages sold are up 88%. In an article in IAM earlier this year by ROL (see The brokered patent market 2014,), it was shown that corporate buyers have overtaken NPEs in 2013 and 2014, comprising 46% for the market versus 38% for NPEs.

Asking prices for US-issued patents monitored have fallen from $577,000 in 2012 to $360,000 in 2014, a fall of 37.6%. ROL’s latest broker sales stats can be found here.

*****

“Uncertainty rules,” my latest Intangible Investor, the July IAM Magazine looks at why confusion over new patent hurdles and lower damages awards is creating an opportunity for some companies to buy patents at lower prices and settle disputes more favorably. Subscribers can get it here.

*****

Don’t expect to see patent uncertainty to wane anytime soon. Many operating companies and at least some NPEs will be sad to see it go.

“Cross-border IP deals: bridges and barricades” will be a featured topic at this year’s IP Business Congress in Singapore, November 17-19.

Securing a patent license or sale is never been a simple matter, even under the best of circumstances. There is due diligence to conduct, skeptical executives to convince, and details that need to be negotiated.

When one or more deal participants is a continent away distances need to be traversed and diverse cultures and legal systems understood. There also is the problem of time zones and travel schedules.

In spite of these obstacles the number, type and demand for IP-related transactions have increased dramatically over the past decade, so too has the range of participants and types of assets.

The line up of panelists for this important IPBC Asia session is as follows, with your intrepid IP CloseUp reporter, serving as moderator:

Patent “Brands” are Serious Business –

­­­­­­­
IP pros and stakeholders share an embarrassing secret: both are generally in the dark when it comes to how patents generate value and impact performance.

Owners of patent portfolios are discovering that reputation pays — especially when it comes to making performance understandable. The right IP message enables diverse audiences, such as shareholders, customers and employees, to have a handle on results without the excess baggage associated with legal rights.

While companies can and do conduct their IP business in the dark with little consequence, results that are conveyed strategically over time can turn a solid reputation into an iconic brand.

A global 500 IT company recently retained my firm, Brody Berman Associates, to explore which patent holders are seen as the leading players — the leading IP brands. The client wanted to learn on what the responding IP executives based their conclusions. The client also was interested to discover (anonymously) how it ranked. The findings of the relatively small sample, while hardly definitive, shed light on how IP opinions are formed.

Businesses like IBM, Microsoft, Qualcomm and Philips were more highly regarded by survey respondents not only because IP rights play a role in their success, but because they remind various audiences they do so.

The survey take-away: A lack of information about a company’s patent performance relative to its industry is at best confusing and at worst damaging. The professionals’ take on a business’ patents and strategy, while often accurate, tended to be based more on impression than fact.

What constitutes a good IP reputation? It is really no different from what goes into any positive business profile: clarity, credibility, consistency — words that are more easily spoken than embodied.

* * *

For patent holders with good results (i.e. discernible IP “wins”), a modest level of transparency can pay impressive dividends. Building a brand may not be for every patent holder, but it is for those with the patience and confidence to explain what they’ve achieved and why.

550+ to Participate in 2011 CIP Forum –

It’s the tenth anniversary of the bi-annual event. If past experience is any indication, CIP Forum will be one of the more outstanding IP gatherings to be held in Europe or the U.S.

Co-organizers Ulf Petrusson and BoHeidenhave their collective finger on the IP pulse. They know how to create a unique chemistry that attracts impassioned iPeople from far and wide. This year they are inviting executives and investors to talk about capturing and managing innovation and the role of open innovation. Among the goals is to help nations understand the impact of their new intangible wealth.

At CIP Forum it is not uncommon to hear conversations among international IP holders, valuation experts, patent brokers, investors, academics, business executives, entrepreneurs, advisors, NPEs, inventors and students. [Click here for more information about the 2011 CIP Forum.]

Seldom do (V)IP figures like this year’s chair, Ruud Peters of CEO of Philips IP and Standards, and Marshall Phelps, former Microsoft and IBM head of IP business and strategy, mix with business, engineering and IP management students, government policy makers and private equity investors in an unabashedly international setting.

Discussion and feisty debate at CIP Forum often carry over to the festivities and private dinners around Gothenburg. It starts with a welcome cocktail reception on Sunday evening, May 29, just after the my workshop.

Yes, your intrepid IP Insider has been asked to chair the 2011 Valuation & Finance Mini-Trackon Sunday afternoon. I look forward to seeing some of my loyal readers there as well as a few who would rather throw tomatoes. Bring your difficult questions to The New Wealth of Nations CIP FORUM 2011- ENGin Gothenburg in May, and don’t be afraid to challenge current IP practices.

After all , IP management has a short history — a few decades, at most — and, more than anything, CIP Forum is about breaking new ground for innovation and IP capital everywhere.

What’s Fueling Higher Awards?

Damages awards for NPEs (non-practicing patent owning entities) are on average triple those of practicing entities, according to handy 2010 Patent Litigation Study from PwC, recently made available.

For some reason the report does not acknowledge that the higher quality and increased value of patents asserted by NPEs may be influencing damages award size, as well as NPE’s growing determination to prevail.

Better access to capital and enhanced patent analysis are the other factors affecting NPE commitment.

“Patent litigation continues to be used as a protection and monetization path for patent holders,” said Chris Barry, PriceWaterhouseCoopers Advisory Partner for Forensic Services. “IP will continue to play an important role in the economy, and represents an important competitive advantage for companies to realize value.”

Another key finding: NPEs have been successful in patent litigation 31 percent of the time overall versus 40 percent for practicing entities, due to the relative lack of success for NPEs at summary judgment.

Interestingly, both have about a two-thirds win rate at trial. Win rates increase when the alleged infringer is a plaintiff and asserts a declaratory judgment action against an NPE.

If a defendant does not win a summary judgment, and the NPE is prepared to go to trial, it (the defendant), the survey indicates, stands a good chance of losing. Many still choose to battle on.

NPEs are now involved in almost 20 percent of decisions since 1995.

The report titled, The Continued Evolution of Patent Law(click here), does not explain that an increasing number of practicing entities (large operating companies, e.g. Bosch, 3Com,Philips) have been selling infringed patents to NPEs so they can monetize them without having to go up against competitors, customers and/or suppliers in a law suit and can be spared the time and cost of enforcement.

Some are selling them outright and others are doing so with a retained interest whose value depends upon the outcome of the enforcement.

* * *

Operating companies increasingly have refused to discuss patent licensing with potential licensers and threaten to bring declaratory judgment actions against those who suggest they may be infringers, forcing many NPEs to sue first and negotiate potential licenses later.

For the latest news on patent licensing companies click below:

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About Bruce Berman

I'm a long-time intellectual property observer, adviser and editor, who is in close close contact with the leading holders and most influential people. I track the latest trends and developments, and monitor patent and other IP transactions, strategy and performance.

Since 1988 I have been working with IP holders, managers, lawyers and investors to properly explain the importance of their assets to key audiences, frame disputes and convey transactions.

My five books, including the IP best-seller FROM IDEAS TO ASSETS, deal with IP rights as business assets. THE INTANGIBLE INVESTOR, the column I have been writing for IAM Magazine since 2003, looks at ways IP rights impact stakeholders. For my complete bio visit www.brodyberman.com or click on the link below.